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SUPREME COURT GRANTS RARE MANDAMUS WRIT,

HANDS GOVERNOR SIGNAL LOSS

[Posted July 22, 2016] On Tuesday, I was in Richmond for the Supreme Court’s historic special session. I have planned all along to prepare a detailed account of the day’s proceedings in two highly charged, politically dominated arguments. My work and travel plans prevented me from doing that before now; I had planned to post a report on Monday.

As of this afternoon, all that is overtaken by events. A sharply divided Supreme Court today issues a writ of mandamus that effectively overturns the Governor’s April 22 restoration of voting rights to 205,000 ex-felons. There are three opinions that span 63 pages, and as is becoming more common, the court throws in footnotes liberally.

The chief justice writes the majority opinion, which rules that the petitioners have standing to bring the proceeding, that the Governor’s order effectively and impermissibly whited out a line in the constitution, and that mandamus was the proper remedy for this. (The court rejects a parallel petition for a writ of prohibition, but the petitioners are probably too busy dancing on the ceiling right now to notice that.) Justices McClanahan, Kelsey, and McCullough join him.

Justice Mims writes a solo dissent that finds no standing on this record, but he would allow the parties to further develop that record by conducting depositions. Justice Powell, writing for Justice Goodwyn, would find no standing, since she felt that the petitioners’ claimed harm is shared by the electorate as a whole. She also feels that the Governor should win on the merits, not merely on standing.

I will likely post further commentary next week — including that glimpse of the rare session — but this will unquestionably be front-page news across the Commonwealth in tomorrow’s papers.

FURTHER THOUGHTS ON HOWELL v. McAULIFFE

[Posted July 26, 2016] I promised you more discussion of last week’s blockbuster ruling by the Supreme Court of Virginia in the original-jurisdiction proceeding involving Governor McAuliffe’s restoration of voting rights to ex-felons. Because there are several themes here, I won’t attempt to weave this into a single story.

Who got “mandamused,” and why?

The lead respondent in the case was, of course, the Governor. But the petition also named the Secretary of the Commonwealth; the Board of Elections and its chair, vice-chair, and secretary; and the Department of Elections and its commissioner, all as respondents.

Last Friday’s writ, importantly, did not order the Governor to do anything. The Supreme Court thus dodges the problematic question whether the court has the power to issue a writ to the Governor himself on a matter involving his discretion. Instead, paragraphs 1-3 of the writ direct the Department of Elections and its commissioner to do certain things; paragraph 4 directs the Board and its officers to do other things; and paragraph 5 gives additional orders to the Secretary of the Commonwealth.

There was, in my view, another reason why no writ was directed to the Governor. If the court had done that, it would have been directing him to undo his April 22 order. The court has always held in the past that mandamus operates only prospectively; it can never be used to undo something that has already been done.

What the court did instead was to grant a form of relief that technically had not been pleaded – a declaratory judgment, holding that the order was unconstitutional – and then direct the several offices and officials to take steps to ensure that no one obeys it. They have until August 25 to comply.

So why not ask for declaratory judgment?

That’s easy: time. The Supreme Court has original jurisdiction to award a writ of mandamus, but only appellate jurisdiction over DJ proceedings. The same reasoning applies to the other extraordinary writ that probably would have worked here, a quo warranto proceeding to challenge the Governor’s right to do what he did.

The problem with both of those approaches is that the petitioners wanted to get a final ruling before we get too close to the November 8 general election. If they had to start in circuit court, go through pleadings, maybe some discovery, a motion or two, then a trial and potential post-trial motions, it would be many moons before they’d get to Ninth and Franklin, and the election would be over.

What’s next?

The government officials who are named respondents – probably not including the Governor! – have a right to file a petition for rehearing, but I doubt they’ll do that. Various media are reporting that the Governor has already started signing individual restoration orders; he vows to get relief to the roughly 13,000 ex-felons who have registered since April 22, and will get to the remaining 193,000 next. Two hundred thousand signatures! Happily, I don’t have to do anything like that.

I’ve heard at least one wag muse whether the Governor can arrange to robo-sign the orders, the way banks do with mortgage assignments and the like. No, I don’t know, and no, I’m not about to research that issue to find out.

In this vein, I can report that at last week’s oral argument, Justice Powell, while questioning the petitioners’ lawyer, noted that the petitioners had conceded that the Governor could grant these restorations individually, by signing 206,000 separate orders. So what’s the difference, she asked, between that and his merely signing his name once? His answer is destined to seem hollow to the Governor’s supporters – he said that the constitution requires the Governor to follow a specific procedure, without answering the underlying question: Are you just doing this to make things inconvenient for him?

Does this unique case offer any guidance for garden-variety appeals?

In most respects, no. As always, with any opinion there are some general takeaways on briefing and procedure, and some guidance on how the justices evaluate arguments. But this case was really sui generis; unprecedented in Virginia’s legal history. Except in other separation-of-powers disputes, this case isn’t likely to be cited heavily.

And yet. There is one aspect of the case that gives me pause, on a particularly precious aspect of appellate practice. What follows here is based on my own inference and deduction. I am not a court insider and never have been. I invite you to follow along and see if you agree with my reasoning.

Oral argument in this case began a few minutes after 9:00 am on Tuesday, July 19. The argument concluded around 10:05, at which point the court took a roughly 20-minute recess before taking up the other case on that day’s docket, Edwards v. Vesilind, involving a challenge to partisan redistricting. (The appeal itself was about whether legislators’ privilege under the Speech or Debate Clause applied to communications with outside consultants and with the Division of Legislative Services.) Argument in that appeal ended somewhere around 11:25 am.

The justices then retired to a conference room to begin what’s called the decision conference. I’ll assume that that began somewhere around noon; perhaps a few minutes before. Given the number and complexity of the issues in the two cases, I will assume that that conference lasted until at least the middle of the afternoon; perhaps a bit later.

You would normally assume that in that conference, the justices debated the issues, explained their views about each case, and ultimately voted. But this was no ordinary docket and no ordinary decision conference.

Late in the afternoon of Friday, July 22 – about 72 hours after the decision conference probably ended – the court released three opinions that aggregate to 63 pages. (I suspect that the opinions were probably ready to go earlier in the day, but a power outage at the courthouse delayed their release.) The chief justice’s majority is 32 pages; Justice Mims’s solo dissent is 10 ½ pages long, while Justice Powell’s is about 20 pages. All three opinions are meticulously footnoted; one of Justice Powell’s notes occupies 2 ½ pages, single-spaced. (Please do not try that in your briefs.) There are 33 footnotes in all.

The justices obviously swapped drafts of their opinions before finalizing them; you’ll see references in the majority to arguments in the dissent, and vice versa. There are plenty of federal cases and holdings from other jurisdictions to back up their respective conclusions.

You’re probably thinking, That’s a lot of work. You’re right.

Because of what I do on opinion days, I have to write and edit my work quickly. I’ve heard that the goal for professional writers is to put down 1,000 words a day. On busy opinion days, I can often crank out five or six thousand, and that includes the time it takes me to read the new cases, decide what to say, and make a quick pass at editing my original composition. For comparison, this essay is about 1,650 words, and it’s taken me about two and a half hours to compose and edit it.

But I could never do this in 72 hours; not starting from scratch. Writing this much would take me about a week, just to generate a first draft. I believe that these opinions took weeks to craft fully.

Assuming that’s correct – and I think it’s safe to do so – let’s see what else we can deduce. Assuming that her dissent took weeks, or at least a week, to write, Justice Powell had to know in advance that she’d have to write it. That means that she knew she was outvoted. That, in turn, means that the justices must have taken at least a preliminary vote some days or even weeks before July 19. How else could Justices Mims and Powell know they had to write something? Why would you set out to write anything if you might be part of a 7-0 decision?

It is, of course, possible that a justice could change his or her vote after hearing that argument; but really, how likely is that to occur in a setting like this? Especially after you’ve committed yourself to a position, and perhaps taken the time to craft an opinion of your own. The justices are human, and they have the same confirmation biases that we have, though I assume they’re careful to be on the lookout for that.

Even so, if all these musings are correct, that means that the justices had decided this case before the first “May it please the Court” was uttered. Oral argument didn’t change the outcome. The petitioners had already won.

As troubling as that conclusion is, it’s actually consistent with what jurists tell me about oral argument. In response to the question, “How often does oral argument change your vote?” most appellate jurists give answers somewhere in the 10-20% range. I assume that’s correct, as I have no way to test it. This extraordinary writ serves to confirm that in modern appellate practice, persuasion is one part oral advocacy and about six parts written advocacy.

Yes, it’s great to be able to give a captivating oral argument, and that’s where the most fun is in appellate practice; but briefs are where the decisions are made nowadays. This contrasts with the early days of the Commonwealth, when briefs were sparse and advocates sometimes argued for days. (Yes, it’s true.) Back then, the great oral advocates dominated appellate courtrooms. Now, it’s the briefwriters.

If you want to be a better appellate lawyer, then, focus on improving your writing. By the nature of our profession, all lawyers have to be professional writers, but for appellate advocates, that skill is particularly crucial. Never assume that your writing skill is sufficient. I never do, and I sometimes write thousands of words in a day. I’m always trying to get better at it, and you should, too.